Lord Buckmaster:-

On the 25th August, 1908, Nawab Azmat Ali Khan executed a wakfnama, or deed of charitable trust, dedicating specific property, of the stated value of Rs. 20,000, for religious purposes. The said Nawab Azmat Ali Khan resided at Karnal, in the Punjab, and early in August of 1908 the Deputy Commissioner of Karnal intimated that he thought it expedient to place the Nawab and his property under the Court of Wards. The Nawab thereupon moved - it is alleged he was taken by his servants, but this is no longer material - to the District of Muzaffarnagar, beyond the jurisdiction of the Deputy Commissioner of Karnal. But the Deputy Commissioner proceeded to act under the Court of Wards Act, and in purported pursuance of the powers thereby conferred he issued an injunction on the 30th August, 1908, restraining the Nawab or any authorised agent from executing any deed of alienation until the further order of the Court. Notwithstanding this 0direction the wakfnama was, on the 1st September, 1908, registered before the Sub-Registrar of Muzaffarnagar. On the 9th November, 1908, the said Nawab executed a further document purporting to appoint trustees of the charity to which his property had been dedicated under the deed of the 25th August.

The Nawab died on the 26th December, 1908, and the appellants, who were his step-brothers claimed, in competition with the trustees for the charity and his widows, to inherit the estate and applied for mutation of names, which was ordered in their favour on the 11th May, 1909, the Collector stating that the parties claiming under the deed of gift, and the widows, who claimed under a deed of sale, could sue in the Civil Courts. On the 8th July, 1912, the respondents, who were the trustees, accordingly instituted the proceedings out of which this appeal has arisen, alleging that the deceased had duly dedicated his property to the charity and claiming that they were the parties named to execute the trust.

This claim gave rise to a series of controversies with which it is unnecessary for their Lordships to deal, for, apart from three questions of law, the other disputes depended upon the determination of questions of fact which have been decided adversely to the defendants in both the Courts. The Subordinate Judge delivered judgment in favour of the plaintiffs (the respondents) and the learned Judges of the High Court affirmed his judgment. From the judgment of the High Court this appeal has been brought.

The three questions of law which alone arise for present determination are these : - Was the action of the Deputy Commissioner of Karnal sufficient to prevent registration ? Was the Sub-Registrar disqualified from registering the deed by reason of his possessing an interest in the property ? and Did the " trusteenamah " (the document of the 9th November, 1908) require registration under the Registration Act of 1877? There are several weighty objections urged against the Appellants upon the first point. First, it is argued that the Deputy Commissioner had no power to issue any injunction under Sections 11 and 12 of the Punjab Court of Wards Act, 1903, and secondly, that, even if he had such power, it must have been limited to persons and property within his jurisdiction. It is unnecessary to decide the first of these arguments, as their Lordships are clearly of opinion that, even assuming his authority would have extended to making such an order had the property been within his jurisdiction, the fact that at the time when the order was made both the Nawab and the property were outside that area deprived the order which he issued of any authority.

The next point depends upon the allegation that the Sub-Registrar was interested in the property registered because he was a trustee of Aligarh College, which was one of the objects entitled to the benefit of the trust. There is no allegation made against the good faith of the Sub-Registrar. It is admitted that he acted faithfully and honestly in the discharge of his duties, but it is said that none-the-less, by virtue of rule 174 of the rules made under Section 69 of the Indian Registration Act, he was incompetent to register the wakfnama, being in the words of the rule "personally or otherwise connected with or interested" in the document. Although his interest was remote, their Lordships are prepared, for the purposes of this appeal, and without giving any definite decision upon the meaning of the rule, to accept the view that this interest did bring him within the meaning of the provision. It would, however, be obvious that, if such a rule stood without any modification in the case of honest and independent action, the validity of registration might again and again be impugned, with unfortunate consequences. The framers of the statute, under which the rules were made, have, however, foreseen and prevented such an unfortunate contingency, for by Section 87 it is provided that:

"Nothing done in good faith pursuant to this or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure."

It is contended that the disability created by Rule 174 cannot be regarded as a mere question of procedure, but their Lordships do not accept this view. The registration by the Sub-Registrar is obviously the essence of the proceedings in effecting registration. If the Sub-Registrar were disqualified the Registrar would be entitled to act, and the fact that the Sub-Registrar, overlooking his own interest, or regarding it as an interest which created no disqualification, in perfect good faith effected the registration himself, is, in their Lordships' opinion, intended by the rules to be a step in the procedure, for it is under the actual heading " Procedure " that the rule is found.

The final question is one that at first sight appears to present more difficulty. It is argued that the " trusteenamah " must have dealt with an interest in immoveable property, for otherwise the trustees could have no right to maintain the suit; and such an argument at first sight makes a strong appeal to those who are accustomed to administer the English law with regard to trustees. It needs, however, but a slight examination to show that the argument depends for its validity upon the assumption that the trustees of the wakfnama in the present case stand in the same relation to the trust that trustees to whom property had been validly assigned would stand over here. Such is not the case. The wakfnama itself does not purport to assign property to trustees. The words of the document are these :-

"I was the lawful owner of the said property. I was partly in actual possession thereof, and partly in legal possession thereof, that is, I was in possession through my servants, 'mustajars' (farmers or lessees), tenants and cultivators. I had power in every way to transfer the same. By virtue of the said power, I divested myself of the connection of ownership and proprietary possession thereof, and placed it into the proprietary possession of Him who is the real owner, that is God, the owner of the universe, and changed my temporary possession known as proprietary possession into that of a ' mutwalli ' (superintendent).

With effect from this day, the said property no longer belongs to me ; nor am I any longer in proprietary possession thereof. It belongs to God, and is a ' sadka ' (alms) for His creatures. I am in possession thereof as a superintendent, that is, as a trustee for those who are according to the objects of the said ' wakf ' entitled to be, in any way, benefited thereby. The said property can neither be sold nor mortgaged, nor transferred in any other way. Neither I nor anyone through me can exercise any proprietary power in respect thereof. It cannot be inherited by anyone on my death, nor can anyone enter into possession thereof by right of inheritance from me. I have reserved for myself the right of superintendence and protection of the said property which I possess under the Muhammadan Law. I shall remain to be myself the superintendent thereof during my life-time or so long as I wish to be so. After that one who shall be appointed by me, shall be the superintendent.

I shall be at liberty to appoint, during my lifetime, anyone whom I like, as a superintendent jointly with me or in my place. I am at liberty to remove him whenever I like and again appoint and remove him so long as he is not appointed a superintendent under the last Will. Such person shall continue to remain the superintendent after my death, until he is duly removed under the provisions of the said Will or according to the law for the time being in force. The said superintendent or I or any other person, acting as a superintendent of the 'wakf' properly, shall have all such powers of managing and protecting the said property as are possessed by an owner of property or were possessed by me before the wakf, provided that the said persons (superintendents) shall have no right to claim ownerships therein or do anything which may be inconsistent with the objects of the ' wakf ' or to sell, mortgage or transfer it in any other way."

If analogies be sought between people holding similar interests over here and the trustees who would take charge of the property under that deed, the trustees would be more closely allied to Receivers and Managers appointed over property, in this country than to trustees in whom the property is absolutely vested. A Receiver and Manager by virtue of his appointment has no estate in the property he is called upon to control; he possesses powers over it but not an interest in it, and the appointment of others in his place would by itself effect no transfer of ownership. The same thing is, in their Lordships' opinion, true of the trustees under this deed. They are, as the deed itself states, superintendents of the property. The further use of the term " trustee" is apt to mislead until this distinction is borne in mind. They are trustees in the general sense that every man is a trustee to whom is entrusted the duty of managing and controlling property that belongs to another, but the deed by which the Nawab appointed the trustees in this case did not purport to transfer, to them the ownership of the property, and it is therefore, in their Lordships' opinion, outside the provisions of the statute and registration was unnecessary. For these reasons their Lordships are of opinion that the judgment of the High Court was right upon all points, and they will humbly advise His Majesty that this appeal should be dismissed with costs.

Appeal dismissed.